Abandonments

[kwilson]

I am being sued by a former client because according to her attorney, her road abandonment was not done correctly.

The parcel map was recorded May 30th 2001 in San Luis Obispo County in the City of Atascadero.

The subject parent parcel had an existing Irrevocable and Perpetual Offer of Dedication for Public and/or Private Road Purposes which was to be abandoned at the request of the City of Atascadero. In fact, their letter of incompleteness stated that "The Existing Offer of Dedication for public and/or private road purposes was should be eliminated when the map records. In order to accomplish this, the applicant should state that the offer is to be quitclaimed by the City."

On the final map, the wording that was used for this abandonment was as follows:

IRREVOCABLE AND PERPETUAL OFFER OF DEDICATION FOR PUBLIC AND/OR PRIVATE ROAD PURPOSES PER 1627-OR-768 TO BE ABANDONED BY THIS MAP.

This wording was used at the request of the City Engineer.

The City Council's Statement says:

I HEREBY STATE THAT THIS SUBDIVISION WAS DULY ADOPTED AND APPROVED AND THE OFFER OF DEDICATION FOR THE PUBLIC UTILITY EASEMENT WAS REJECTED WITHOUT PREJUDICE BY THE COUNCIL OF THE CITY OF ATASCADERO ON ....

The City Planning Commission Statement says:

THIS IS TO STATE THAT I HAVE EXAMINED THIS MAP AND HAVE DETERMINED THAT SAID MAP SUBSTANTIALLY CONFORMS TO THE TENTATIVE MAP AS APPROVED BY THE CITY OF ATASCADERO....

We believe that there is clear intent that the offer was to be abandoned when the map recorded. We also believe that the abandonment has occurred by means of the recording of the map. I created the map and added wording at the request of the City to accomplish the abandonment.

QUESTION: Was the City Council's Statement worded incorrectly?
What is your opinion concerning the abandonment. Was it accomplished?
Can a road be abandoned on a final map?

We also believe that the City was responsible to make sure that the abandonment was to occur when the map recorded since that was a requirement that they added to the subdivision process.

The map was reviewed and signed by the City Engineer, City Council and City Planning Commission.

Interestingly, the City of Atascadero in 2011 sent a letter to the subdivider stating that the map "erroneously contained language that the city was to abandon the offer of dedication". So the City has contradicted itself.

Please provide references for your comments if possible.

I was not able to include page 1 of the Final Map as an attachment. I was only able to include page 2. (Was the file too big? 2933 KB) Tried 5 times different formats. If you want to see it I can email it to you.

Thank you

Ken Wilson
Wilson Land Surveys Inc.
805-703-0273
408-540-7687

[E_Page]

I believe that there is a specific process in th eStreets & Highways Code that needs to be followed to give abandonment full effect. What the City had you do may do no more than signal their intent that the RW be abandoned. I'd have to look it up again.

But you followed the direction of the City officials. Seems like that should help considerably in any defense.

[btaylor]

Ken, couple things:

The city council is rejecting the public utility easement dedication, correct? They are otherwise not "rejecting the abandonment", right? I am missing the correlation with their statement and how it pertains to the road abandonment.

The City is now saying to the client that they never abandoned this right of way? I am perplexed how they can justify this if the map was recorded.

I assume that city council statement is supposed to pertain to the right of way abandonment, but it appears to be they are rejecting the 6' PUE you have along the frontage. It is unclear to me if you were dedicating that PUE or it was existing.

[Warren Smith]

A more effective method would have been to employ the abandonment certificate outlined in SMA section 66499.20.2 where the City Clerk certifies to the abandonment of the noted dedication - not shown on the map.
The City Surveyor could have suggested this solution.

[steffan]

A more effective method would have been to employ the abandonment certificate outlined in SMA section 66499.20.2 where the City Clerk certifies to the abandonment of the noted dedication - not shown on the map.
The City Surveyor could have suggested this solution.

I'd think 66445(j) would be the more applicable section as it pertains to parcel map procedure. 66499.20.2 is similarly worded but is instead the statutory procedure for reversion through the utilization of a map:

66455(j) Any public streets or public easements to be left in effect after the subdivision shall be adequately delineated on the map. The filing of the parcel map shall constitute abandonment of all public streets and public easements not shown on the map, provided that a written notation of each abandonment is listed by reference to the recording data or other official record creating these public streets or public easements and certified to on the map by the clerk of the legislative body or the designee of the legislative body approving the map. Before a public easement vested in another public entity may be abandoned pursuant to this section, that public entity shall receive notice of the proposed abandonment. No public easement vested in another public entity shall be abandoned pursuant to this section if that public entity objects to the proposed abandonment.

It looks like the statement on Sheet 2 meets part of this section's requirements. Am curious how Sheet 1's statements are worded to see if something there meets the rest of the requirement.

To answer your questions:

QUESTION: Was the City Council's Statement worded incorrectly? would need to review the entire Sheet 1 to see if it includes the operative certification requirement
What is your opinion concerning the abandonment. Was it accomplished? Would need to review Sheet 1 to see if certification requirement of 66455(j) was met
Can a road be abandoned on a final map? Absolutely. per 66434(g) for final maps or 66445(j) for parcel maps

[Anthony Maffia]

Attached is an abandonment by parcel map I did 13 years ago. The city clerk's statement affirmed the abandonment and referenced California Government Code Section 66499.20 1/2.

[Warren Smith]

Steffan is correct. The appropriate sections relating to final maps and parcel maps apply for standard subdivisions. The 66499.20.2 applies to mergers and resubdivisions.

The certificate by the clerk of the legislative body is required, and needs to be authorized by the resolution approving the map.

[D Ryan]

I'm including one from a few years ago similar to what Anthony provided. The particular Parcel Map section would apply in your case though, as Jeff alluded to. See attached bmp's.

As others have said, without the cover page, we can't offer opinions on the details of your situation. I would add, this process is for vacating public easements. Any privately created easements would still exist subject to executing deeds to extinguish them.

Dave Ryan
Humboldt County

[Warren Smith]

I've wondered about showing the extents of the 'proposed abandonment' when the statute refers to 'not shown on the map'. Certainly, the reference to the record document which created the easement is a requirement. It is a given that only the extents within the subdivision are being abandoned.

[mbstanton]

Ken:

Sorry to be the bearer of bad news, but based on a 1990 court case Negron v. Dundee (1990) 221 Cal App 3d 1502, easements that did NOT appear on the face of a recorded map cannot be extinguished by the recordation of another map. In other words, if the easement was created by separate document, it must be extinguished by a separate document consistent with the provision is the streets and highways code.

Mike Stanton, PLS 5702

(case summary is attached)

[steffan]

Its worth noting that sections 66434(g) & 66445(j) were created in 1997, several years after the 1990 Negron v Dundee case. The Negron case discussed then 66499.20 1/2's inapplicability because that was not a merger/resubdivision situation for which that section applies.

i bring this up as it is my belief that the Negron v Dundee case did not invalidate the ability to abandon easements on the map itself via 66434(g) & 66445(g) for maps created after 1997. Abandonment utilizing the procedures outlined in the S&H Code is not the sole method available.

[dedkad]

It's always been my understanding that you can't just abandon a public street easement on a map without the necessary general plan conformity findings and public notices being done first, so if the abandonment wasn't addressed during the tentative map stage, we don't allow it to be abandoned by the final map or parcel map. We would follow the S&H Code for the procedure instead.

If the abandonment was shown on the tentative map, then we would proceed with abandoning it with filing of the final or parcel map. That process includes a notation of the abandonment with recording info referenced on the cover sheet of the map, along with the following note in the City Clerk's (or the approving official's) Statement: I also agree to accept the vacation of ___

• as noted on this map.
  
  I have sometimes asked for the easement being abandoned to be shown on Sheet 2 of the map if I think it is necessary for clarification, but the SMA clearly does not require that.
  
  I think where you may be in trouble is if the abandonment was not specifically mentioned in City Clerk Statement.

[scarpa]

If the abandonment was shown on the tentative map and/or stated within the Conditions of Approval,…

[dedkad]

If the abandonment was shown on the tentative map and/or stated within the Conditions of Approval,…

Yes. And the Government Code section that requires the GP finding is Government Code Sec. 65402.